Kowal v. United States Department of Justice ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARBARA KOWAL
Plaintiff,
v.
Civil Action No. 18-938 (TJK)
UNITED STATES DEPARTMENT OF
JUSTICE et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Barbara Kowal, a paralegal with the Federal Defender for the Middle District of Florida,
filed this suit against the Department of Justice and the Drug Enforcement Administration under
the Freedom of Information Act. Kowal requested all records from the DEA relating to Daniel
Troya, a capital defendant that the Federal Defender represents in his post-conviction hearings,
to several of his co-defendants as well. The DEA produced documents from its law enforcement
records system but withheld some documents in whole or in part under several FOIA
exemptions. The DEA also produced two Vaughn indices. After cross-motions for summary
judgment, the Court held that the DEA’s Vaughn indices were inadequate. Since then, the DEA
has updated its Vaughn indices and the parties have cross-moved again for summary judgment.
Defendants move for summary judgment, arguing that their updated Vaughn indices are
sufficient, they properly invoked certain FOIA exemptions to justify their withholdings, and met
their duty to disclose all reasonably segregable portions of the records at issue. In response,
Kowal argues that the DEA’s Vaughn indices are still inadequate, that the DEA failed to
adequately justify the claimed FOIA exemptions, improperly withheld information in the public
domain, and failed to disclose all reasonably segregable information. The Court finds that the
DEA’s Vaughn indices are sufficient and that the DEA properly invoked Exemptions 6, 7(C),
7(D), 7(F), and, in some contexts, 7(E). But the Court also finds that the DEA did not provide
enough information for the Court to determine whether it properly invoked Exemption (7)(E) for
materials relating to the DEA Agents’ Manual. The Court also finds that the DEA met its duty to
disclose all reasonably segregable portions of the records at issue. The Court will therefore grant
Defendants’ motion except as to the materials referencing the DEA Agents’ Manual and deny
Kowal’s motion along the same lines. Otherwise, the Court will deny both motions without
prejudice.
I. Background
Kowal’s office began representing Troya in capital post-conviction proceedings in April
2015. ECF No. 1 (“Compl.”) ¶ 6. A few months later, she sent a request under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, and Privacy Act of 1974 (“PA”), 5 U.S.C. § 552a, to
the Drug Enforcement Administration (“DEA”) seeking documents related to Troya’s
prosecution. Id. ¶ 11. Kowal requested “all documents, files, records, etc. pertaining to any
investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of . . .
Daniel Troya (a/k/a “Homer”), DOB: 04/22/1983” and cited his federal criminal charges. Id.
Kowal also requested the same documents for five of Troya’s co-defendants. Id. One week
later, Kowal sent an amended request, including a certification signed by Troya that permitted
Defendants to release Troya’s records to Kowal’s office. See ECF No. 1-2.
The DEA’s search identified 418 pages responsive to Kowal’s request. See ECF No. 20-
1 (“First Hertel Decl.”) ¶ 27. The DEA invoked FOIA Exemptions 6, 7(C), 7(D), 7(E), and 7(F)
to withhold some documents in whole or in part. See First Hertel Decl. ¶ 15. Exemption 6
protects information in personnel and medical files when disclosure would “constitute a clearly
2
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). In contrast, each § 552(b)(7)
exemption applies only to information compiled for law enforcement purposes: Exemption 7(C)
protects against unwarranted invasions of personal privacy, Exemption 7(D) protects the
identities of confidential sources or information furnished by confidential sources, Exemption
7(E) protects law enforcement techniques and procedures, and Exemption 7(F) protects against
endangering the life or physical safety of any individual. Id. §§ 552(b)(6), (b)(7)(C), (b)(7)(D),
(b)(7)(E), (b)(7)(F).
In June 2019, the DEA moved for summary judgment and a few months later, Kowal
cross-moved for summary judgment. ECF Nos. 20 & 23. The DEA supported its motion with
the declaration of Angela D. Hertel, the DEA’s acting FOIA and PA Unit Chief, which explained
in detail the DEA’s response to Kowal’s request. See First Hertel Decl. The DEA also provided
two Vaughn indices that assert exemptions for each page or range of pages in the responsive
files.1 See ECF No. 20-14; ECF No. 20-15. The indices work in tandem with the Hertel
Declaration, which describes the types of general information withheld under each exemption.
See First Hertel Decl. ¶¶ 35–59. Each entry in the indices provides the applicable page range in
the responsive file and includes a short document description, document date, whether the
document was withheld in full or in part, a list of exemptions claimed for the document, and
explanations for why each exemption applies.
In ruling on the parties’ cross-motions, the Court found that “the DEA conducted an
adequate search, but that the record [did] not provide enough information to determine whether it
1
The first Vaughn index covers 342 pages that the DEA originally processed in response to
Kowal’s request. The second index covers the other 76 pages that the DEA processed after
Kowal provided documentation that enabled the DEA to release information about one of
Troya’s co-defendants.
3
properly applied FOIA’s exemptions, withheld information in the public domain, or produced all
segregable portions of the records at issue.” Kowal v. United States Dep’t of Just.,
464 F. Supp. 3d 376, 379 (D.D.C. 2020). As a result, the Court granted Defendants’ motion and
denied Kowal’s as to the adequacy of DEA’s search, and otherwise denied the motions without
prejudice. Since that decision, the DEA has updated its Vaughn Indices and the Hertel
Declaration and once again, the parties cross-moved for summary judgment.
II. Legal Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. Summary judgment is appropriate when, “viewing the evidence in the light most
favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable
jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Rels. Action Network,
Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
FOIA “requires federal agencies to disclose information to the public upon reasonable
request unless the records at issue fall within specifically delineated exemptions.” Judicial
Watch, Inc. v. FBI, 522 F.3d 364, 366 (D.C. Cir. 2008). It creates a “strong presumption in favor
of disclosure,” and “places the burden on the agency to justify the withholding of any requested
documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). If information is already in
the public domain, an agency cannot invoke an otherwise valid exemption to withhold it.
Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001). When an
agency withholds portions of a record, it must still disclose “[a]ny reasonably segregable portion
. . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).
4
A court reviewing a FOIA action may grant summary judgment based on the agency’s
declarations “[i]f an agency’s affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the information withheld logically falls within
the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence
of the agency’s bad faith.” Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619
(D.C. Cir. 2011). But the agency may not rely on “conclusory and generalized allegations of
exemptions” in its affidavits. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).
III. Analysis
A. Sufficiency of DEA’s Vaughn Indices
Kowal again challenges the sufficiency of the Vaughn indices provided by the DEA.
Because FOIA requesters face information asymmetry that favors the agency, courts evaluating
claimed FOIA exemptions must rely on the agency’s representation of the materials it withholds.
See King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). A sufficiently detailed Vaughn index
enables that evaluation. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006).
An agency must use a Vaughn Index to explain withheld information by “specify[ing] in detail
which portions of the document are disclosable and which are allegedly exempt.” Vaughn,
484 F.2d at 827.
A court evaluates a Vaughn index on its function, not its form. Keys v. DOJ,
830 F.2d 337, 349 (D.C. Cir. 1987). An adequate Vaughn index functions in part to enable the
reviewing court to determine whether the agency properly invoked FOIA exemptions. Lykins v.
DOJ, 725 F.2d 1455, 1463 (D.C. Cir. 1984). It does so if it “provide[s] a relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document to which they apply.”
5
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). Thus, an
index must “state the exemption claimed for each deletion or withheld document, and explain
why the exemption is relevant.” Founding Church of Scientology of Wash., D.C. v. Bell,
603 F.2d 945, 949 (D.C. Cir. 1979).
Kowal argues that the DEA has not cured the deficiencies in its Vaughn indices and
“merely repeat[s] boilerplate language about the claimed exemptions” rather than providing “a
factual basis for why exemptions were properly invoked.” ECF No. 40 at 18. Previously, the
Court noted that the DEA’s Vaughn indices claimed exemptions for each document, but did not
adequately “correlat[e] those claims with the particular part of a withheld document to which
they apply.” Kowal, 464 F. Supp. 3d at 384. And the indices did not provide enough specificity
as to why exemptions applied to certain documents. Id.
The DEA’s revised indices remedy these problems. The Vaughn indices specify which
exemptions are being able to which portions of a document, and what information is being
redacted. See, e.g., ECF No. 36-3 at 23–24. At times that information is described quite
generally, relying on language that Kowal describes as “boilerplate.” See, e.g., id. at 24
(explaining that Exemptions 6 and 7(c) were used to protect the names and identities of
“individuals includ[ing] third parties, such as law enforcement personnel, witnesses, suspects,
co-defendants and confidential sources of information.”). But it is unclear to the Court what
further detail the DEA could provide without revealing the exempted content. And in looking at
the DEA's Vaughn indices alongside its declaration, the nature of the redacted material is clear. 2
2
To the extent Kowal questions the propriety of the DEA’s invocation of some exemptions many
times with exactly the same explanations, Defendants convincingly explain that this is because
many pages contain similar reports and forms. ECF No. 46 at 17.
6
See Judicial Watch, 449 F.3d at 145. Ultimately, the DEA’s revised Vaughn indices adequately
enable the Court to review the agency’s withholdings. See Lykins, 725 F.2d at 1463.
B. The DEA’s Withholdings
1. Exemption 6 and 7(C)
Under Exemptions 6 and 7(c), the DEA withheld the identities of, and personal
information about, individuals involved or associated with Troya or relevant law enforcement
investigations. ECF No. 36-1 (“Second Hertel Decl.”) ¶ 20, 44. All information that “applies to
a particular individual” qualifies for consideration under Exemption 6. U.S. Dep’t of State v.
Wash. Post Co., 456 U.S. 595, 602 (1982); see Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.
DOJ, 503 F. Supp. 2d 373, 381 (D.D.C. 2007) (“Congress’[s] primary purpose in drafting
Exemption 6 was to provide for confidentiality of personal matters.”). And as for Exemption
7(C), “the standard for evaluating a threatened invasion of privacy interests resulting from the
disclosure of records compiled for law enforcement purposes is somewhat broader than the
standard applicable to personnel, medical, and similar files” under Exemption 6. DOJ v. Reps.
Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). Thus, because “Exemption 7(C) is
more protective of privacy than Exemption 6,” U.S. Dep’t of Def. v FLRA, 510 U.S. 487, 496 n.6
(1994), and the records at issue were compiled for law enforcement purposes, the Court need
only consider whether the DEA properly invoked Exemption 7(C)—“all information that would
fall within the scope of Exemption 6 would also be immune from disclosure under Exemption
7(C),” Roth v. DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011). Narrowing the analysis further,
because Kowal does not dispute that the requested records about Troya’s criminal prosecution
are law enforcement files for purposes of Exemption 7(C), the Court need only evaluate the
7
DEA’s redactions by balancing “the privacy interests involved against the public interest in
disclosure.” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1205 (D.C. Cir. 1991).
Defendants provide several explanations as to the privacy interests implicated by the
withheld material. Defendants argue they invoked Exemption 7(C) to protect third parties, “such
as law enforcement personnel, witnesses, suspects, co-defendants and confidential sources of
information,” from “possible harassment” or becoming the focus of “derogatory inferences and
suspicion.” Second Hertel Decl. ¶ 20. Defendants also say they invoked Exemptions 6 and 7(C)
together “to protect the names and other identifying information that would reveal the identity of
and disclose the personal information about individuals who were involved in law enforcement
investigations.” Id. ¶ 44. The DEA weighed the public interest in knowledge of “DEA’s
performance of its mission to enforce Federal criminal statutes and the Act, or how DEA
conducts its internal operations and investigations” against the privacy interest of these
individuals. Id. ¶ 25.
Exemption 7(C) “affords broad privacy rights to suspects, witnesses, and investigators.”
SafeCard Servs., 926 F.2d at 1205 (quoting Bast v. DOJ, 665 F.2d 1251, 1254 (D.C. Cir. 1981)).
And the public interest in personally identifiable information is “not just less substantial, it is
insubstantial,” id., unless there is “compelling evidence that the agency denying the FOIA
request is engaged in illegal activity” and “access to the names of private individuals appearing
in the agency’s law enforcement files is necessary to confirm or refute that evidence.” Id. at
1205–06. Otherwise, “there is no reason to believe that the incremental public interest in such
information would ever be significant,” and the information is exempt from disclosure. Id. at
8
1206. Since Kowal does not point to any illegal activity implicating the DEA or its redactions
under Exemptions 6 and 7(C), the Court cannot find fault with the balance the DEA struck. 3
Kowal argues that the DEA’s redactions were improper because the privacy interests at
stake are minimal under the “public domain” doctrine. She contends that “many, if not all, of the
law enforcement personnel involved in this case, as well as numerous third party witnesses who
were interviewed by law enforcement” were identified at Troya’s trial. ECF No. 40 at 21. To be
sure, agencies “cannot rely on an otherwise valid exemption claim to justify withholding
information that has been ‘officially acknowledged’ or is in the ‘public domain.’” Davis v. DOJ,
968 F.2d 1276, 1279 (D.C. Cir. 1992) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130–34
(D.C. Cir. 1983)). But “a plaintiff asserting a claim of prior disclosure must bear the initial
burden of pointing to specific information in the public domain that appears to duplicate that
being withheld,” id. (quoting Afshar, 702 F.2d at 1130), to ensure that “the information sought is
truly public and that the requester receive no more than what is publicly available.” Cottone v.
Reno, 193 F.3d 550, 555 (D.C. Cir. 1999). “For the public domain doctrine to apply, the specific
information sought must have already been ‘disclosed and preserved in a permanent public
record.’” Students Against Genocide, 257 F.3d at 836 (quoting Cottone, 193 F.3d at 554).
3
Kowal cites Citizens for Responsibility and Ethics in Washington v. DOJ, 746 F.3d 1082, 1093
(D.C. Cir. 2014) (“CREW”) for support that her FOIA requests “pertain to a matter of substantial
public concern: the public’s interest in learning ‘about the diligence of the [DEA]’s investigation
and the DOJ’s exercise of its prosecutorial discretion[.]’” ECF No. 40 at 20 (citing CREW, 746
F.3d at 1093). “But CREW did not hold that FOIA required . . . name[s] or private information
contained in the investigative files be revealed in unredacted form. Rather, it held that, in light
of the significant public interests at stake, the agency’s categorical withholding of all responsive
records under Exemption 7(C) was improper.” Jett v. Fed. Bureau of Investigation,
139 F. Supp. 3d 352, 361–62 (D.D.C. 2015). Here, the DEA has not categorically withheld
records but instead redacted specific portions of otherwise disclosed documents that include
names and other personally identifiable information. See Hertel Decl. ¶ 26.
9
Kowal has not met her burden of showing that the “public domain” doctrine diminishes
the privacy interests at stake here. She attaches long trial transcripts, without pinpoint citations,
to purportedly show that the identities of witnesses who testified at trial are “unquestionably
already a matter of public record.” ECF No. 40 at 22. But she does not link up “specific” trial
documents that are “identical” to those withheld or redacted by the DEA. Davis, 968 F.2d at
1280. While perhaps the identities of some individuals involved in the investigation were
revealed at trial, Kowal does not meet her burden to show that the identical documents and
information that DEA seeks to withhold here were made public then. See Bartko v. DOJ,
167 F. Supp. 3d 55, 72 (D.D.C. 2016) (“Aside from the trial testimony she references, the
plaintiff has not even tried to explain how the balance of the materials she seeks is public.”)
(cleaned up); Black v. DOJ, 69 F. Supp. 3d 26, 35 (D.D.C. 2014) (determining burden unmet
where plaintiff provided court transcripts but failed “to point to specific information identical to
that being withheld that has been placed in the permanent public record”). Further, “[e]ven if
[Kowal] already knows the identities of trial witnesses, the [DEA’s] decision to withhold their
names and other identifying information under Exemption 7(C) is justified” because “[a] witness
does not waive his or her interest in personal privacy by testifying at a public trial.” Sellers v.
DOJ, 684 F. Supp. 2d 149, 159–60 (D.D.C. 2010); see also Lardner v. DOJ, No. 03-cv-0180,
2005 WL 758267, at *19 (D.D.C. Mar. 31, 2005) (finding that the name of a witness who
testified at a public trial was properly withheld under Exemption 7(C)). Ultimately, Kowal has
not shown that the material withheld by the DEA is in the public domain, and since the DEA
justified its reliance on Exemptions 6 and 7(C), it may withhold that material. See Davis,
968 F.2d at 1280.
10
2. Exemption 7(D)
Exemption 7(D) allows the withholding of records that could disclose the identity of
confidential sources as well as any information those sources provide. 5 U.S.C. § 552(b)(7)(D).
In determining the applicability of the exemption, “the question is . . . whether the particular
source spoke with an understanding that the communication would remain confidential.” DOJ v.
Landano, 508 U.S. 165, 172 (1993). Defendants invoked Exemption 7(D) to “withhold portions
of the report that contained information that would disclose the identity of and the information
provided by the confidential source.” Second Hertel Decl. ¶ 27. For many of these sources,
Defendants suggest that confidentiality was implied based on the “facts and circumstances” of
the investigation. Id. ¶ 29.
Kowal argues that Defendants improperly applied a blanket presumption that individuals
who provide information to the FBI do so under an implied assurance of confidentiality. ECF
No. 40 at 25. Kowal is right that it would be improper to do so. Landano, 508 U.S. at 175–76.
But an assurance of confidentiality can still be implied based on the nature of the criminal
investigation and the informant’s relationship to the target. Id. at 179. This is one of those
situations. The DEA explains that the sources “were involved, and maintained a close
relationship with, several individuals who trafficked in and engaged in other drug-dealing and
illegal activity” and that the information they provided related to the trafficking. Second Hertel
Decl. ¶ 29.4 And Courts often find that confidentiality is implied in illicit drug trade
4
To the extent Kowal argues that the “particularized approach” laid out in Landano requires
information about the specific circumstances of each informant, ECF No. 40 at 19, she overstates
the holding of that case. Landano rejects a categorical presumption of confidentiality for all
investigations and instead requires a particularized approach distinguishing the sources in a
specific investigation from the broader swath. See also Quinon v. FBI, 86 F.3d 1222, 1231 (D.C.
Cir. 1996) (discussing the “case-specific factor” cited to justify invocation of Exemption 7(D)).
11
investigations because violent reprisal is so common. See Wilson v. DEA, 414 F. Supp. 2d 5, 15
(D.D.C. 2006); Mays v. DEA, 234 F.3d 1324, 1329–30 (D.C. Cir. 2000); Love v. DOJ, No. 13-
cv-1303, 2015 WL 5063166 at *6 (D.D.C. 2015). Because of the nature of the investigation, the
Court can infer an assurance of confidentiality. Thus, the DEA properly invoked exemption
7(D).
In addition, when Kowal addresses segregability in her briefing, she argues that the
protections of Exemption 7(D) are waived when a source testifies at trial. She thus suggests that
the DEA cannot invoke this exemption for at least some of the sources. But that is not the law in
this Circuit. See Parker v. DOJ, 934 F.2d 375, 380 (D.C. Cir. 1991) (concluding that testifying
at trial does not waive an agency’s right to invoke Exemption 7(D)). See also Cobar v. DOJ,
81 F. Supp. 3d 64, 72 (D.D.C. 2015) (holding that the official confirmation of a confidential
source does not diminish Exemption 7(D)’s protections). Thus, the DEA properly withheld
information provided by confidential sources, even though those sources testified at Troya’s trial.
3. Exemption 7(E)
Exemption 7(E) allows the withholding of documents complied for law enforcement
purposes if disclosing such records “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Agencies face a “relatively low bar” when
trying to withhold information under Exemption 7(E). Blackwell v. FBI, 646 F.3d 37, 42 (D.C.
Cir. 2011). The agency need only “demonstrate logically how the release of the requested
But Landano does not explicitly require that these distinguishing factors be provided as to each
individual source, and the Kowal cites no case law to support such a requirement.
12
information might create risk of circumvention of the law.” Id. (quoting Mayer Brown LLP v.
IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).
Defendants invoked Exemption 7(E) to withhold “Geo-Drug Enforcement Program (G-
DEP) identifiers,” “Narcotics and Dangerous Drugs Information System (NADDIS) numbers,”
and DEA file numbers. Second Hertel Decl. ¶¶ 32, 35. The DEA claims that if this information
were released, “[s]uspects could decode this information and, as a result, change their patterns of
drug trafficking” and “develop enforcement countermeasures, avoid detection and apprehension,
create excuses for suspected activities, and/or create alibis for suspected activities.” Id. at 33.
This information is routinely withheld. See Higgins v. DOJ, 919 F. Supp. 2d 131, 151 (D.D.C.
2013) (approving the withholding of G-DEP and NADDIS numbers under Exemption 7(E));
Miller v. DOJ, 872 F. Supp. 2d 12, 28–29 (D.D.C. 2012) (approving the withholding of
NADDIS numbers under Exemption 7(E)); Chavis v. DOJ, No. 20-CV-00638, 2021 WL
1668069, at *8 (D.D.C. Apr. 28, 2021) (approving the withholding of G-DEP and NADDIS
numbers under Exemption 7(E)). And the DEA’s explanations as to how this information could
be used to circumvent the law satisfies their burden, as outlined in Mayer Brown, 562 F.3d at
1193.5
Defendants also invoke 7(E) to withhold “material that would reveal sensitive, non-public
references to the DEA’s Agents’ Manual” and “certain information that would reveal sensitive,
non-public references to the DEA’s Agents’ Manual.” Second Hertel Decl. ¶¶ 34, 38. Because
5
The Court is unpersuaded by Kowal’s arguments about Defendants’ prior practice of releasing
some of this information. As outlined in Mayer Brown, 562 F.3d at 1193, the exemption is
properly applied to information that “could reasonably be expected to risk circumvention of the
law.” The DEA’s understanding or expectation of the risks associated with release of this kind
of information might reasonably change over time. And even if the agency previously believed
release to be appropriate, that does not prevent the DEA from meeting the “relatively low bar”
here. Blackwell, 646 F.3d at 42.
13
of the brevity and vagueness of these statements, the Court is unable to determine whether such
references truly risk revealing techniques unknown to the public. More specifically, it is unclear
what law enforcement procedures are at stake and how references to the DEA Agents’ Manual
might disclose those procedures. “Although Exemption 7(E) sets a ‘low bar for the agency to
justify withholding,’ the agency must at least provide some explanation of what procedures are
involved and how they would be disclosed.” CREW, 746 F.3d at 1102 (quoting Blackwell,
646 F.3d at 42) (emphasis in original). See also Nat’l Sec. Archive v. FBI, 759 F. Supp. 872, 885
(D.D.C. 1991) (holding that the withholding of information about techniques that were “lawful
and not generally known to the public” was too conclusory and required supplementing with
more detailed information); Albuquerque Publ’g Co. v. DOJ, 726 F. Supp. 851, 857 (D.D.C.
1989) (holding that the information provided about the nature of the techniques was insufficient
for the court to determine whether the exemption had been properly invoked) The DEA has not
provided sufficient detail for the Court to determine whether such records were properly
withheld under 7(E).
4. Exemption 7(F)
Exemption 7(F) allows the withholding of documents compiled for law enforcement
purposes if disclosure “could reasonably be expected to endanger the life or physical safety of
any individual.” 5 U.S.C. § 552(b)(7)(F). Defendants only invoke Exemption 7(F) in
conjunction with Exemption 7(C). ECF No. 46 at 24. Given that Exemption 7(F) is “an absolute
ban against certain information and, arguably, an even broader protection than 7(C),” Raulerson
v. Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002), and as the Court has determined that
Exemption 7(C) was properly invoked, the Court need not reach the applicability of Exemption
7(F). See Wilson v. DEA, 414 F. Supp. 2d 5, 14 n.8 (D.D.C. 2006).
14
C. Segregability of the Documents DEA Withheld in Full
Finally, Kowal argues that the DEA failed to show how portions of documents it
withheld in full were not segregable. Under FOIA, any “reasonably segregable portion of a
record shall be provided to any person requesting such record after deletion of the portions which
are exempt.” 5 U.S.C. § 552(b). The agency is “entitled to a presumption that [it] complied with
the obligation to disclose reasonably segregable material.” Hodge v. FBI, 703 F.3d 575, 582
(D.C. Cir. 2013) (alteration in original) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1117 (D.C. Cir. 2007)). Defendants must, however, identify the exempt material and “provide
descriptions of excerpts deemed to be non-segregable, with explanations as to these decisions.”
Am. Immigr. Council v. DHS, 950 F. Supp. 2d 221, 248 (D.D.C. 2013).
Kowal argues that Defendants’ justifications for withholding the documents in full were
too conclusory to carry the burden of proving that the agency properly determined that there
were no segregable portions. ECF No. 40 at 30. But the DEA has shown with “reasonable
specificity” why there is no portion of the documents withheld in full that cannot be segregated
and produced. Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). The
DEA provided descriptions of these documents and has explained why the exemptions were
applied to those documents. See ECF No. 36-2; ECF No. 36-3. Additionally, the Hertel
declaration explains that the DEA examined “each page” of the documents for reasonably
segregable information, Second Hertel Decl. ¶ 51, and that it withheld documents in their
entirety only if release of additional information would:
(1) provide no useful information, or incomprehensible words or phrases that would not
shed any light on how the Government conducts business; (2) result in compromising the
identity of and information provided by sources of information who were granted express
or implied confidentiality; (3) be an unwarranted invasion of personal privacy when
balanced against the public interest in the release of information gathered during the
course of a criminal investigation; (4) disclose techniques and procedures for law
15
enforcement investigations or prosecutions; or (5) place in jeopardy the lives and safety
of third- parties which includes sources of information, individuals associated with or
mentioned in, the investigative reports, and DEA agents.
Id. ¶ 50.
Kowal’s argument mostly focuses on her own attempt to recreate the review described
above. Kowal believes she has identified documents in her office’s possession that match
documents withheld in full by the DEA. ECF No. 40 at 30. She describes a process by which
her office tried to copy the redactions claimed by the DEA to determine whether remaining
material was segregable and improperly withheld. 6 But ultimately, her problem with the DEA’s
withholding of these documents is really an extension of her disagreement with the DEA’s
invocation of the relevant exemptions. See ECF No. 40 at 31-32. Thus, Kowal is incorrect about
the documents’ segregability largely because she is incorrect about whether the DEA has
properly invoked these exemptions. Upon review of the relevant Vaughn index and the Hertel
Declaration, the Court is satisfied that Defendants have shown that no portion of the documents
withheld in full is reasonably segregable and therefore must be disclosed. 7
6
After reviewing the documents Kowal used in this exercise, the Court is even more convinced
that the DEA properly withheld them under the various exemptions asserted and that there are no
reasonably segregable portions of them. The DEA properly withheld Exhibit T, the witness
interview report, under Exemption 7(D) for the reasons discussed above. And the Court’s review
of Exhibit R, filed under seal, has assured it both that the DEA properly claimed implied
confidentiality because of the “facts and circumstances” surrounding the investigation, and that
the document does not reveal information about the functioning of the DEA sufficient to
outweigh the privacy interests of the individuals involved.
7
Because the Court is unable to determine whether the DEA invoked Exemption 7(E) properly
as to the materials it asserts would reveal sensitive, non-public references to the DEA Agents’
Manual, it is unable to determine whether it has met its burden of showing that there were no
reasonably segregable portions of these documents.
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IV. Conclusion and Order
For all the above reasons, Defendants’ Motion for Summary Judgment, except as to its
withholding of materials that it asserts would reveal sensitive, non-public references to the DEA
Agents’ Manual, is GRANTED and Plaintiff’s Motion as to the same withholdings is DENIED.
In all other respects, the motions are DENIED WITHOUT PREJUDICE. It is FURTHER
ORDERED that the parties shall file a joint status report, including, if appropriate, a schedule
for further summary judgment briefing, by September 3, 2021.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 3, 2021
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